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Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent's adjustment application because he checked a box on a Form I-9 indicating that he was a U.S. citizen or national and the immigration judge did not credit his testimony that he was instructed to do so by his employer's human resources officer. (Note: the Department of Homeland Security did not cross-appeal the immigration judge's finding that it failed to establish removability under Section 237(a)(3)(D) of the INA (false claim to citizenship)). The decision was written by Member Ellen Liebowitz.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent's adjustment application because he checked a box on a Form I-9 indicating that he was a U.S. citizen or national and the immigration judge did not credit his testimony that he was instructed to do so by his employer's human resources officer. (Note: the Department of Homeland Security did not cross-appeal the immigration judge's finding that it failed to establish removability under Section 237(a)(3)(D) of the INA (false claim to citizenship)). The decision was written by Member Ellen Liebowitz.

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11/18/2013

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 leesburg Pike, Suite 2000 Falls Church, Virginia 220./J

Stanton, James A., Esq. Stanton Law Group 900 Fort Street, Suite 1110 Honolulu, HI 96813

OHS/ICE Office of Chief Counsel - HON 595 Ala Moana Boulevard Honolulu, HI 96813-4999

Immigrant & Refugee Appellate Center | www.irac.net

Name: ESPINO Ill, VICENTE SOMERA

A 087-081-219

Date of this notice: 8/5/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DonrtL ct2tVL)
Donna Carr Chief Clerk

Enclosure Panel Members: Liebowitz, Ellen C

lulseges Userteam: Docket

Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

U.S. Department of Justice Executive Oflkle for Immigration Review
Falls Cbun:b, Vuginia22041

Decision of the Board of Immigration Appeals

File: A087 081 219 - Honolulu, HI
In re:

Date:

AUG 0 5 2013

VICENTE SOMERA ESPINO. ID a.k.a. Vicente de la Cruz

IN REMOVAL

PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: James A Stanto� Esquire ON BEHALF OF DHS: Chandu Latey Assistant Chief Counsel

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CHARGE: Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] In the United States in violation of law
-

Sec.

237(a)(3)(D), I&N Act [8 U.S.C. § 1227(a)(3)(D)] False claim of United States citizenship (not sustained)

APPLICATION: Adjustment of status

The respondent, a native and citizen of the Philippines, appeals the Immigration Judge's February 23, 2012, decision denying his application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). We will dismiss the appeal. We review for clear error the findings of t8ct, including the determination of credibility, made by the Immigration Judge. 8 C.F.R § 1003.l(d)(J)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proo( and issues of discretion. 8 C.F.R § 1003. I(d)(3)('ti). The respondent filed his application after May 11, 2005; therefore, the provisions of the REAL ID Act apply. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006). The respondent concedes be checked the box on a Form 1-9 indicating be is a citizen or national of the United States. He claims he did so at the direction of a Human Resources employee. He testified that he assumed he must be considered a national of the United States since he was instructed to check that box. A Record of Sworn Statement indicates the respondent admitted to an immigration officer that he claimed to be a United States citizen (Exh. 8). The Immigration Judge did not credit the respondent's assertion that be informed the immigration officer that he checked the box because he was instructed to do so by a Human Resources employee, and that the immigration officer erred by not reflecting his explanation in the Record of Sworn Statement. The respondent initialed each statement in the Record of Sworn Statement and signed it, affirming its accuracy. He did so in the presence of his United States
Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

A087 081 219 citizen daughter and his lawyer, who both accompanied him to the interview with the immigration officer. The Immigration Judge relied on these factors when not crediting the respondent's assertion that the Record of Sworn Statement is inaccurate. The Immigration Judge's adverse credtl>ility finding is not clearly erroneous. The Immigration Judge is permitted to make reasonable inferences among the plausible possibilities in the record, and did so in this case. See Matter of D-R-, 25 l&N Dec. 445, 454 (BIA 2011) (drawing inferences from direct and circumstantial evidence is a routine and necessary task of any fact finder). The Immigration Judge reasonably found it implausible that the respondent would initial and sign the Record of Sworn Statement if it was inaccurate and that his lawyer would allow him to do so. The adverse credibility finding undermines the respondent's argument that the Record of Sworn Statement should not be evidence of his intent to claim citizenship, as opposed to nationality, at the time he filled out the Form 1-9. light of the evidence of record and the respondent's lack of credibility, we agree with the Immigration Judge that the respondent did not meet his burden of establishing he is admissible, which is a requirement for adjustment of status. See section 212(a)(6)(C)(tl) of the Act, 8 U.S.C. § l 182(al<6)(C)(ii) (rendering inadmissible one who makes a false claim to United States citizenship). Accordingly, we will dismiss the appeal. The respondent provided evidence that he posted the required voluntary departure bond; therefo� we will reinstate the grant of voluntary departure.
In

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 30 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security ("DHS"). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b); see also 8 C.F.R §§ 1240.26(c), (t). In the event the respondent tails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge's order.

NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of I 0 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: Ifthe respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties

1 The DHS did not appeal the Immigration Judge's holding that it did not meet its burden of proving removability under section 237(a)(3)(D) of the Act.

2

Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

A087 081 219

for failure to depart under section 240B(d) of the Act shall not apply. § 1240.26(e)(l).

See 8 C.F.R.

WARNING: It: prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that . he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i).

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FOR THE BOARD

3

Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)

·�
_,•

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT HONOLULU, HAWAII

Immigrant & Refugee Appellate Center | www.irac.net

File:

A087-081-219

February 23,

2012

In the Matter of

) VICENTE SOMERA ESPINO III RESPONDENT

) )
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237{a) (1) {B) of the Immigration and Nationality Act; Section 237(a) (3) (D) of the Immigration and Nationality Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT:

JAMES A.

STANTON

ON BEHALF OF DHS: CHANDANI LAYTEY

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a is a native and citizen of

ritilippines.

�ear-old,

unmarried male, who

The Department of

Homeland Security issued a Notice to Appear to the respondent on June 7, 2010. This Notice to Appear was filed with the 2010, vesting jurisdiction with

Immigration Court on June 17, the Immigration Court.

Service of the Notice to Appear and

jurisdiction has not been contested in this matter. to Appear was marked as Exhibit 1. At a master calendar hearing, four factual allegations,

The Notice

the respondent admitted

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denying the fifth factual allegation;

the respondent conceded removability under Section 237(a) ( 1) (B) of the Immigration and Nationality Act, in that after admission of the Act, the

as a non-immigrant under Section lOl(a) ( 15)

respondent had remained in the United States for a time longer than permitted, United.States. in violation of this Act or any other law of the The Department of Homeland Security, in support

of the two charges of removability, allegations.

lodged five factual

The Department alleges that the respondent is not and is a native of that the

a citizen or national of the United States,

the Philippines and a citizen of the Philippines;

respondent was admitted to the United States at San Francisco, California, on or about July 2, 2003, as a non-immigrant H-lB,

with authorization to remain in the United States for a temporary period not to exceed November 1, 2003; and that the

respondent remained in the United States beyond November 1, 2003, without authorization from the Immigration and the Department of

Naturalization Service or its successor, Homeland Security.

The Notice to Appear further alleges that on the respondent misrepresented himself to

or about January 2007,

be a citizen of the United States for purposes of gaining employment, by submitting a Form I-9, Employment Eligibility

A087-081-219

2

February 23, 2012

Verification, United States.

and attesting to be a citizen or national of the The Court did not rule on removability under the charge.

Section 237{a) (3) (D)

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The Court took testimony from the respondent and his daughter, Exhibit 1, and considered the following evidence in the record. the Notice to Appear, dated June 7, 2010; Exhibit 2, a

the hearing notice of hearing on July 13,

2010; Exhibit 3,

decision on application for status as a permanent resident; Exhibit 4, a document entitled Motion to Reopen Removal Rescind In Absentia Order of Removal, Change Venue and

Proceedings,

to the Office of Immigration Court in Honolulu, Appear Telephonically; Exhibit 5, Court, venue;

Hawaii,

an order generated by the motion to reopen and change

motion to reopen; Exhibit 6, Exhibit 7,

a document entitled Respondent's First Hearing document entitled U.S. Department of

Exhibit;

Exhibit 8,

Homeland Security Evidence, 30, 2011; Exhibit 9,

certificate of service of November

respondent's motion to dismiss charge 2 in 2010 Notice to Appear; Exhibit 10, Form I-

respondent's June 7, 693,

Report of Medical Examination; Exhibit 11, Exhibit 12,

Respondent's

Second Hearing Exhibits; Exhibits; Exhibit 13,

Respondent's Third Hearing Exhibit 14,

an attachment to Form I-485;

decision on application to register permanent residence. STATEMENT OF THE LAW Adjustment of status is available to an alien who (A) has been inspected and admitted or paroled into the United

A087-081-219

3

February 23, 2012

States;

(B} is eligible to receive an immigrant visa because he (C} an immigrant visa is

or she has an approved visa petition;

immediately available at the time the application is filed,

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because the petitioner's priority date, current; and,

if applicable,

is

(D} is admissible to the United States for See Section 24S(a} of the Act. As the

permanent residence.

adjustment of status is a discretionary form of relief, alien must also show he merits a favorable exercise of discretion. See Matter of Patel, 17 I&N Dec.

597 (BIA 1980}.

The respondent's case comes to the attention of the Department of Homeland Security during an interview in which the respondent identifies that he filled out a Form I-9 where he checked the first box of the Form I-9. The respondent is The

attending an interview with an adjudications officer.

respondent attends this interview with his daughter and an attorney. As the testimony reflects, the respondent was engaged where the which

in a communication with the adjudications officer,

respondent recounts checking the box 1 of the Form I-9,

indicates that the person would be a citizen or national of the United States. The respondent testifies that as he was directed he thought that he may be a national

to sign or check that box, of the United States.

And the respondent testifies that he The

never intended to claim to be a United States citizen.

respondent also testifies that he was unaware that it would be illegal to claim to be a United States citizen. The respondent,

A087-081-219

4

February 23,

2012

who speaks English,

was educated in English in high school,

and

also through most of college,

as the respondent has indicated but stopped short a

that he almost obtained a degree in college, few units.

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The respondent testified today in ·English.

The

Court has no reason to believe that the respondent does not have a thorough understanding and appreciation of English. The respondent was first employed in the United States in 1986. The respondent has testified that he had supervisor The respondent has had at

responsibility over six employees.

least three jobs in the United States that the Court is aware of. The respondent is confronted with a sworn statement that

was produced after an interview with an adjudications officer, in which the respondent initials and dates each line contained in the sworn statement. The respondent testifies that he knew but signed it and initialed and dated

the information was wrong,

the document because the person that asked him to do that was in a position of authority. dated this document, at the U. S. The respondent signed, initialed, and

with his daughter being present,

who works and

Postal Service,

with an attorney being present,

no one raised any issues r7lating to the information contained in the sworn statement varying from the information that the respondent provided during the course of the interview. The Court considered the respondent's argument, respondent cites memos within the Department of Homeland Security or Immigration and Naturalization Service, relating to as the

A087-081-219

5

February 23, 2012

sworn statements,

and also Form I-9's.

The Court did not find, that the respondent or that allegation

based upon the evidence that was presented, was removable as charged under 237(a}(3) (D},
s was factually accurate.

Immigrant & Refugee Appellate Center | www.irac.net

As such, · the Court did not sustain

allegation 5 or the corresponding charge. The Court took testimony, as is consistent with the The Court had the The Court would find The

application for adjustment of status. opportunity to observe the respondent.

that the respondent did not testify credibly today.

respondent articulates that he thought he was a U.S. national or that he could be a U.S. national, informed him to check the box, simply because someone

that the respondent testifies

that he did so because that person was in a position of authority and he was an applicant for a job, that job. and that he wanted

The Court would find that the respondent did check What was unclear,

that box to receive a benefit of employment.

and the reason why the Court did not sustain the allegation and charge, was whether or not the respondent was making a false or whether or not he was

claim as a United States citizen, claiming to be a national. claiming to be a national, the relief sought.

In the event that the respondent was the respondent would be eligible for with the respondent's testimony it

However,

relating to his representations to the adjudicating officer, is clear the respondent provided testimony relating to a U. S. citizen issue, and not a U.S. national issue.

The Court draws

A087-081-2 19

6

February 23, 2012

this conclusion because the respondent attends his interview with his daughter and with an attorn�y, opportunity to review, evaluate, all of which had the report adversely, if

comment,

the adjudicating officer had performed or committed what would ultimately be fraud in their misrepresentation in memorializing the information that the respondent had testified to during the interview. The respondent has not filed a complaint against the The respondent's daughter, who is a U.S.

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adjudicating officer.

Postal Service employee,

who acknowledges the understanding of

the ability to file complaints against federal government employees, and the respondent's attorney, who was present during

the interview, statement,

and also present during the signing of the sworn according to the respondent, is materially

which,

different from that which he made representations to in this interview. The Court has not been provided with any

documentation relating to any complaints filed with the adjudications officer or the attorney that was appearing with the respondent. things. This case is recent in the grand scheme of 2009.

The respondent's application was denied on May 4,

It is quite possible,

and maybe even probable (although the that the adjudicating officer is still

record does not reflect) , with USCIS. presented, However,

based upon the information that has been

the Court would find that the respondent has failed

to establish that he did not present a false claim to obtain employment at Cadbury Schweppes.

A087-081-219

7

February 23, 2012

The Court,

as such,

would turn to whether or not the The Court would The Court

respondent's application should be granted. find that, as a matter of law,

it should be denied.

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would turn to whether or not the respondent be granted adjustment of status as a matter of discretion. The Court, in

evaluating the positive and the negative factors in the respondent's case, respondent not having any criminal record, The Court would also evaluate and

the respondent paying taxes.

consider the fact that the respondent has a United States citizen daughter and six children in the United States. Court would find, representations, The

based upon the respondent's testimony and or more specifically, misrepresentations, in

these proceedings today, adjustment of status,

that the respondent should be denied

as a matter of discretion.

The Court turns to whether or not the respondent should be granted voluntary departure. The Court would find

that there are no statutory bars eliminating the respondent from eligibility for voluntary departure. The respondent has been in and does have children

the United States for a period of time, in the United States.

The Court would grant the respondent's

request for voluntary departure over the Department of Homeland Security's objection, requiring that the respondent post a $500 and

voluntary departure bond within five business days,

requiring that the respondent depart the United States within 30 days of today's hearing. The departure date being March 26,

A087-081-219

8

February 23, 2012

20 12. ORDER IT IS THEREFORE ORDERED that the respondent's application for adjustment of status be denied; that the

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respondent's request for voluntary departure be granted.

A087-081-219

9

February 23, 2012

, ..

\.

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE C LARENCE M. WAGNER, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

VICENTE SOMERA ESPINO III

A087-081-219

HONOLULU,

HAWAII

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

ASHLEY GAITHER DEPOSITION MARCH 30,

(Transcriber) Inc.

SERVICES, 2012

(Completion Date)

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